Jul 31 The Dutch case

A government is expected to protect its citizens from external threat. If a neighbouring country were to invade these shores, Australians would rely on their government to organise a response.

According to climate science, the warming of the planet poses an immense threat to the every nation in one way or another. Unfortunately, here in Australia the level of consensus on the danger presented is low.

In The Netherlands, however, in 2013, 886 citizens, with the support of an organisation that promotes sustainability, Urgenda, brought a case against the Dutch government for failing in their duty of care to protect their people from dangerous climate change. That year, renewable energy supplied only 4.5 per cent of Dutch energy demand, some way off the country's 2020 target, and well behind European leaders such as Germany and Denmark. The Netherlands were supposed to cut their emissions by 25 per cent from 1990 levels (under international climate treaties), but the government had admitted they were aiming for 16 per cent. Urgenda argued that they should in fact be cutting emissions by 40 per cent, in line with climate science, and in order to ensure that the planet does not warm by more than two degrees. The country was a laggard rather than a leader.

No prizes for guessing which label fits Australia.

Urgenda director Marjan Minnesma came to Brisbane last week to meet with the Environmental Defenders Office (see here) of Queensland and speak to a public meeting about the landmark legal decision that required the government of The Netherlands to tackle climate change adequately.

When governments continually fail in their duty of care to protect the people they represent, then the people will eventually take action to protect themselves. There are increasing numbers of frustrated and alarmed Australians who despair of the feeble attempts of the current Federal government to address even the first stage of preparedness in a climatically challenged continent. It is not surprising that many of them are concluding that only the law can save them now.

'The Dutch Case' was not about environmental law nor human rights issues, but civil law; tort, in fact. Tort is concerned with a breach of duty under Dutch law, and one that affords a right of action for damages. The unlawful act in this case was to not take sufficient action to avoid dangerous levels of climate change.

The Dutch lawyers presented the judge with the facts of the matter: they had written evidence, for example, of the government's meagre target of 16 per cent. And they gave him the scientific evidence. The judge applied logic to the facts to address questions of law, not politics. Does the state have discretionary powers? Yes, but not to do the absolute minimum required.

He judged there to be a new precedent – unlawful hazardous negligence. He concluded from the climate science that the chances of dangerous climate change are very high, and that mitigating measures should be taken expeditiously. The current emissions target was insufficient to achieve only a 2-degree warming. Democratic law protects citizens, and in this case the state has a crucial duty of care to reduce emissions to between 25 and 40 per cent.

Tort law in Australia is different, and constitutional law is conservative. Duty of care is based upon groups of individuals being responsible for care rather than the government. Also, it adopts the 'but for' test to determine negligence and neglect. The 'but for' test simply asks, 'but for the existence of A, would B have occurred?' If the action is yes, then A is an actual cause of the result B. But for the Australian government not taking mitigating measures, would the Australian people suffer harm?

Clearly it is not going to be as easy for citizens in Australia to do what the Dutch did. EDOs across the land are busy considering their options under the law, however.

In the meantime, Ms Minnesma had some advice for citizens to take matters into their own hands. Let the government know what you think they should do and how it is possible. Make your presence felt: write them letters; turn up to street protests. Practise crowd pleading: appeal to like minds and those who might take action with you. Be practical: make your house energy-neutral; use an electric car. She stressed that if something is possible, and you want it to happen, then it can happen.

She was like a breath of fresh air blowing through Brisbane. She gave many jaded climate change and environmental activists new hope. It will be a long tough ride to force the laggard government to act in a necessarily responsible way with regard to reducing this nation's emissions. But we left the lecture theatre in the Queensland State Library with smiles on our faces and renewed energy to continue the struggle.